STATE OF ASSAM versus HABIBA BEGUM.
September 22, 2015
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS II,
AT KARIMGANJ
G/R. CASE NO. 839 OF 2014
PRESENT: - SRI TARUN DEY, AJS
JUDICIAL MAGISTRATE First Class,
KARIMGANJ
STATE of Assam ......... Abdul Raquib Tapadar (Informant)
-VersusHabiba Begum of vill. Jatkapan,
P.S. &, Distt. Karimganj............................. Accused
U/Sec. 341/323/427 I.P.C.
COUNSELS:
FOR the Prosecution: - SMTI. SURUCHI ROY, LD. A.P.P.
FOR the Accused: - SHRI ABDUL BASIT KHAN, LD. Advocate
OFFENCE EXPLAINED on: 05/11/14
EVIDENCE recorded on: 09/12/14, 09/01/15, 26/02/15, 25/03/15 AND 21/05/15
AGRUMENT heard on – 08/09/2015
JUDGMENT delivered on – 22/09/2015
JUDGMENT
1. An aggrieved person comes to Court when his right is violated for seeking justice.
As such in India, the Courts are regarded as temple of justice. In the present
case, the alleged place of occurrence makes it unique, which is in front of a Court
room. A lady allegedly assaulted an old man with her foot ware in front of such a
temple of justice.
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2. The genesis of the prosecution case as traceable in the FIR is that on 02.05.14
the informant Abdul Raquib Tapadar lodged an ejahar in Karimganj P.S. to the
effect that on that day, he along with other persons were coming out from the
Court of Addl. C.J.M. Karimganj, after appearance in a case. While he reached in
front of C.J.M. Court, Karimganj through the baranda, the accused being a stout
lady restrained him and started beating him with her sandal (foot ware) and
dragged him holding his kurta, which caused the kurta tattered. She also took
away cash Rs. 13,200/- from his pocket of kurta and his spectacles. People
present at the spot rescued him from the accused. Hence this case.
3. On receipt of the ejahar, a case was registered in the Karimganj Police Station
u/Sec 341/323/427/379 IPC. After investigation, the police filed Charge sheet
against the accused Habiba Begum under the sections 341/ 323/ 427 IPC, to
stand trial. This Court took cognizance on the police report and summons was
issued to the accused.
4. After appearance of the accused, the relevant copies were furnished to her and
after hearing both the sides, particulars of the offence under Sec 341/323/427
IPC were read over and explained to the accused, to which she pleaded not
guilty and claimed to be tried.
5. The trial commenced and to bring home the charges, as many as 8 witnesses
were examined from the prosecution side, who were cross examined by defence.
The accused was examined under Sec 313 Cr.P.C., where her stand was of total
denial and she also took the plea of alibi. As many as 2 witnesses were examined
from the defence side. I have heard the arguments forwarded by both the sides.
POINTS FOR DETERMINATION
After perusal of the Case Record, I have found the following points of
determination.
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I)
September 22, 2015
Whether the accused on 02.05.14 at about 1.00/ 1.30 PM wrongfully
restrained the informant in front of Court of C.J.M., Karimganj when he
was coming from Addl. C.J.M. Court through the baranda?
II)
Whether the accused on the same date, time and place, assaulted the
informant with her sandal (foot ware) and caused him simple hurt?
III)
Whether the accused on the same date, time and place, caused damage
to the spectacle and tattered the kurta by dragging him?
DISCUSSIONS, DECISION AND REASONS THEREOF
6. To arrive at a judicious decision on the above points of determination, I have
carefully gone through the materials on record, including evidence recorded. Let
me discuss the germane evidence on record.
7. i) The P.W. 1 Abdul Raquib Tapadar deposed that on 02.05.14, at about
1.00/1.30 PM, when he along with Khalilur Rahman and Hussain Ahmed, after
making their appearance in Addl. C.J.M. Court in a case filed by the accused,
going through the baranda within Court compound, at that time, in front of Court
of C.J.M. Karimganj, the accused dragged him by holding his Kurta and assaulted
him in his cheek with her sandal several times. Resulting which, his spectacles
broke by falling on grounds and his kurta became tattered. The accompanying
people restrained the accused. The accused also took Rs. 13,200/- from the
pocket of kurta. He was then taken to Bar Library. He exhibited the ejahar. In his
cross examination, he admitted that in the case filed by accused, she alleged
grabbing of money against him. That, the accused was wearing Burkha, but her
face was open and visible. Apart from that, the defence suggested his version of
story that the witness talked with her by touching her body, which the witness
denied. He was also suggested that since the accused filed a case against him,
he filed this false case against her in grudge, which he denied.
ii) Close on heels of P.W. 1, the P.W. 2 Khalilur Rahman deposed that on that
day, he and Hussain Ahmed were walking through the baranda, and behind
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them, informant was also walking. Suddenly, they heard hue and cry and turn
back, to see that the accused was dragging informant holding his kurta and then
assaulting him with her sandal in his right side of forehead. Resulting which his
spectacles fell on grounds and his kurta got tattered. They took him to Bar
library. The informant told him that he had Rs. 13,000/- in his pocket, which was
not there after the occurrence. In his cross examination, this witness was also
suggested that due to touching of body of accused by informant, the matter
started, which the witness denied. The P.W. 3 Hussain Ahmed very nicely
corroborated the P.W. 1 and 2 regarding material part of the alleged occurrence.
He also stated that the spectacle of the informant broke by falling on ground.
That, the accused clutched the informant with one hand and was beating him
with sandal with the other. In his cross examination, he was suggested that after
the alleged occurrence, the sons of the informant assaulted accused, which the
witness stated that he does not know. The witness also admitted that husband of
accused is his maternal uncle and due to land dispute of his mother, he is
deposing falsely against the accused, which the witness denied.
iii) The P.W. 4 to P.W. 7 are legal practitioners, who witnessed the occurrence.
P.W. 4 Swapna Begum also nicely corroborated the earlier P.W.s in material part
of the alleged occurrence. She witnessed the occurrence from the baranda of
Court. In addition she stated that the informant sustained some bleeding injuries.
The informant also told her that he lost Rs. 13,000/- from his pocket, during the
occurrence. In her cross examination, she admitted that informant is his
maternal uncle. She was suggested that prior to the occurrence, there was some
drag and push between both and the informant touched her body, which the
witness denied. The P.W. 5 Debasish Chakraborty deposed that he noticed the
occurrence from baranda of Court, that in front of CJM Court, one lady was
beating one old man with her sandal. His Kurta was tattered. He along with P.W.
6 & 7 took him to bar Library. Except suggestions, nothing contrary revealed in
cross examination. P.W. 6 Bijon Kumar Paul, deposed that he noticed the
occurrence from baranda of Addl. C.J.M. Court. He saw that one lady was
dragging one old man’s kurta and beating him with sandal in different part of
body. He noticed blood in right side of eyes of informant. They then rescued him
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and took him to Bar Library. In his cross examination, he stated that the lady
was wearing burkha, but her face was visible. He was suggested that he is
helping his colleague Advocate, which he denied. The P.W. 7, Biswa Baran
Barua deposed that he noticed the occurrence from the stare upright the
baranda of Court, that near the notice board, Adv. Swapna Begum was taking an
old man from the place and one lady wearing burkha was trying to assault the
old man or assaulting the old man. He also noticed that his kurta was tattered.
They took him to bar library. In cross examination, he admitted that later he
came to know that the informant was maternal uncle of Swapna Begum, i.e.
P.W. 4. He was suggesting that to help the said Swapna Begum, he is deposing
falsely, which the witness denied.
iv) The P.W. 8 the investigating officer deposed that during investigation he
drew sketch map, recorded statements and seized the tattered Kurta and after
completion of investigation, filed the charge sheet against the accused. He
exhibited the sketch map, seizure list and charge sheet. In his cross examination,
he admitted that the accused also filed a case against the informant.
8.
i) To start with the appreciation of the above evidences, let me first look into the
nature of the witnesses. What I find is, except the investigating officer, all the 7
witnesses are the eye witnesses to the occurrence. The P.W. 1 is the informant,
P.W. 2 and 3 are his companions and co-accused persons in the case in which
they attended, P.W. 4 albeit is a legal practitioner, she is niece of the informant,
P.W. 5 to 7 are also the legal practitioners, P.W. 8 is the investigating officer.
Since the P.O. situates adjacent to this Court and the witnesses so nicely
described the Place of occurrence and their positions, I need not take help from
the Ext. 2 to figure out the P.O. and surrounding areas. All the witnesses as per
their statements were hardly 10 to 15 feet away from the P.O. It was a working
day and the Court has the judicial notice that many litigants, Advocates and
police personnel usually walk through the baranda of Courts at the relevant time
of occurrence. Litigants usually are found sitting along the baranda and this is
the usual picture surrounding the P.O. at the alleged time of occurrence.
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ii) Now, while going through the evidences of the witnesses, I find that all the
witnesses, close on heels of one another, corroborated each other on the
material part of the occurrence. All the witnesses saw the occurrence from a
close view. The contradictions among them are so minor in view that they cannot
be termed as material. The defence while arguing its case, termed P.W. 1 to 4,
as interested witnesses. Even if so, P.W. 5 to 7 are independent witnesses. The
rule of appreciation of evidences is that if any interested witness is found, his
testimony should have corroborative values from other independent witnesses.
Here in this case, the P.W. 5 to 7 have corroborated the interested witnesses to
the maximum extent, that no thread of doubt arises in my mind to term them as
reliable witnesses.
iii) The Ld. Counsel for the accused argued on some specific points, which needs
to be discussed at length. Firstly defence puts emphasis on the point that the
P.W. 4 was not present on that date in the case which was attended by the
informant and P.W. 2 & 3, as such she did not identify them in their hazira and
put question that how she could witness the occurrence. The prosecution
submitted that the P. W. 4 is an Assistant Counsel and might not have signed in
the hazira for simple reasons. In view of the same, the argument of Ld. Defence
counsel does not hold water for the simple reason that mere not signing the
hazira, does not amount to his absence inside the Court compound. The defence
also took the plea that due to previous enmity between the parties, the
informant filed this false case. The defence substantiated this argument, by
drawing Court’s attention to the fact that the informant and other persons
attended the Court that day in a case filed by the accused. The defence
suggested the witnesses that due to the previous grudge, the informant filed the
case. In respect of the contention of the defence that there is previous enmity
between the parties, reference may be made to the following judgmentIn RUBUL ALI Vs STATE OF ASSAM [2009(1) GLJ (NOC) 570], the Hon’ble
Gauhati High Court observed:
―Existence of enmity is a double edged weapon. While it may be a cause for a
person to have been falsely implicated, it may become a cause for a person to
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assault his adversary. Thus when existence of enmity between two parties is
brought to the notice of a Criminal Court, the Court has to be alert and scan the
evidence with great care and caution. If the evidence inspires confidence, there
is no legal impediment in founding conviction of an accused on such evidence. If,
however, the evidence is shaky or doesn’t inspire confidence, the factum of
strained relationship will be an additional factor for the Court to treat such
evidence as unsafe to rely upon and /or base conviction thereon.‖
Here in this case, on scanning the evidences of the prosecution witnesses
carefully, I find that the witnesses loudly speak about assaults by the accused to
the informant. Moreover, they very nicely corroborated each other, to assure the
Court to rely them. As such, the version of the witnesses inspires confidence
regarding the occurrence.
iv) Let me now move to the evidence of the defence, wherein I find that accused
is examined as D.W. 1 and her son is examined as D.W. 2. Contention of the
accused is also found in her statement u/Sec 313 CrPC. The accused for the first
time in this stage took the plea of alibi and narrated another story that she on
the relevant date of occurrence, after her appearance in the Court of A.C.J.M
Court, went out of Court to go to Badarpur for consulting a doctor. While she
was at the Doctor’s place, she got a call from the informant over mobile phone,
from the informant of this case, that he wants to talk about compromise in the
case and called her upon to Karimaganj Court compound. Accordingly, she came
to karimganj at about 3.30 PM, where there talk of compromise failed. She along
with her son went out of the gate of D.C.’s office and when proceeded towards
western side through the road, she and her son was attacked by the informant
and his son along with 2/3 other named persons. Thereafter, she was taken to
P.S.I. office of Court compound and thereafter she lodged an ejahar in the
Karimganj P.S., which is pending before Court for adjudication. Her son D.W. 2
more or less corroborated her in the material part of occurrence. The defence
raised the plea of that occurrence with the accused at 3.30 PM, while cross
examining the prosecution witnesses, but took the plea of alibi at the later stage
for the 1st time.
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v) Now, let me discuss the provisions of law regarding proof facts raised by the
accused in his Sec 313 CrPC statement and as defence witnesses. The relevant
provision is Sec 11 of the Indian Evidence Act, which provides, facts not
otherwise relevant are relevant, 1) if they are inconsistent with any fact in issue
or relevant fact, (2) If by themselves or in connection with other facts they make
the existence or non-existence of any fact in issue or relevant fact highly
probable or improbable.
The Section 11 consists of two clauses, viz.,
1. Facts inconsistent with fact in issue or relevant fact, and
2. Facts highly probable or improbable.
Facts inconsistent with fact in issue or relevant fact: One fact is inconsistent with
the other when it cannot co-exist with the other. Under this clause facts are
relevant only because they cannot co-exist with fact in issue or relevant fact. Plea
of alibi is such plea which falls under this clause of the provision. Now the
standard of proof of such plea is also provided u/Sec 103 in The Indian Evidence
Act, 1872
Sec 103 reads as, Burden of proof as to particular fact.—The burden of proof as
to any particular fact lies on that person who wishes the Court to believe in its
existence, unless it is provided by any law that the proof of that fact shall lie on
any particular person.
Illustration 1[(a) ] A prosecutes B for theft, and wishes the Court to believe that
B admitted the theft to C. A must prove the admission. B wishes the Court to
believe that, at the time in question, he was elsewhere. He must prove it.
Plea of alibi taken by accused, it is he who has to prove it; State of Haryana v.
Sher Singh, AIR 1981 SC 1021.
vi) We find that the defence witnesses are mother and son. They simply stated
that an occurrence took place with them at 3.30 PM, by the accused persons.
But, they could not substantiate their statement that at 1.00/1.30 PM, they were
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at Badarpur and not at Karimganj, by other supporting evidences, neither ocular
nor documentary. In absence of any concrete proof of the facts claimed by the
defence, I have strong doubt about their absence in the Karimganj Court
compound, whereas, the prosecution adduced as many as 8 witnesses, having
corroborative values. The existence of the case filed by the accused in respect of
an occurrence at later hours does not negate the fact that the accused is not
involved in the occurrence as alleged in this case. Even if so, it is a separate
adjudication and this Court is not in a position to borrow merits from that case
while adjudicating the present case, as such every case has its own merit.
vii) It is pertinent to add here that, the defence, which cross examining the
witnesses, suggested some witnesses that prior to the occurrence, the informant
touched the body of the accused and from that incident, some altercation started
between them, which the witness denied. If the defence suggested this
contention to the adverse witnesses, it can be inferred that it believed the
existence of this fact. But it is found contrary to defence’s plea taken at later
stage that the accused was elsewhere at the alleged time of occurrence. The
defence is found in confusing status while taking plea of alibi on one hand, and
the plea that informant touched her body to provoke her to altercate on the
other.
9.
In the above background of discussion, I am in strong doubt regarding existence
of any fact pointed out by accused for his defence.
10. On the face of the above adumbration, I am of the opinion that the evidences of
the prosecution witnesses are trustworthy and safe to be relied upon. Hence,
from the totality of facts, as come out from the evidence, it is held that the
prosecution has succeeded in proving that the accused Habiba Begum wrongfully
restrained the informant while he was going through the baranda of Court
compound and caused simple injury to the victim/ informant Abdul Raquib
Tapadar with her sandal in his face. But, I have not found any satisfying
materials from the evidences that the informant caused damage to the Kurta or
spectacles. As such the materials were not exhibited to ascertain the amount of
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mischief. Hence, the accused is held guilty under Sec 341/323 IPC and convicted
accordingly.
Benefit under the Probation of Offenders Act, 1958:
11. I have considered the case of the convict under the germane provision of
Probation of Offenders Act, 1958. It is worthy restating that an aggrieved person
comes to Court when his right is violated to seek justice. As such in India, the
Courts are regarded as temple of justice. The accused knowing that her act would
amount to an offence, she dared to commit the same in front of a Court and
within Court compound, where police personnel, Advocates and Judges sit for the
interest of protecting rights of the citizens. Considering the nature of offence and
especially the place of occurrence, committed by the convict, I am of the opinion
that the benefit of the aforesaid Act cannot be extended to the convict. If such
accused/convicts are given the benefit of Probation of Offenders Act, the same
would encourage the other like-minded criminals to commit such crime. Hence the
convict is not given benefit under the aforesaid Act.
Hearing on Sentence:
12. I have heard the convict on the point of sentence. She has pleaded for leniency
in sentence on the ground that she is poor lady and does not have her own
homestead land. Her one child is about 3 years old and other is about 4 years old
and she has to look after them in absence of her husband. Her husband resides
out of house due to his employment.
13. Before going to the sentence part, a very recent Judgment of Hon’ble Apex Court
draws my attention. A two Judge bench of it, comprising Hon’ble Justice Dipak
Mishra and Hon’ble Justice P.C. Pant, while deciding Criminal appeal no. 20062009 of 2014, State Vs. R. Vasanthi Stanley and ors, on 15.09.15,
observed that an offence under the criminal law is an offence and it does not
depend upon the gender of an accused. True it is, there are certain provisions in
CrPC relating to exercise of jurisdiction under Section 437, etc. therein but that
altogether pertains to a different sphere. With the spirit of this observation, I also
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opine that any offence is gender neutral, albeit, exceptions are there, which varies
with circumstances in case to case.
14. After considering the facts of the case vis a vis the grounds mentioned during
sentence hearing I am of the opinion that the accused deserves sentence of
Simple Imprisonment for 3 months for offence u/s-323 IPC and sentence of fine of
Rs. 500/- for the offence u/Sec 341 IPC, in default to serve simple imprisonment
for another 5 days. The convict is sentenced accordingly.
15. Judgment is pronounced in open Court and given under my hand and seal of this
Court on this the 22nd day of September, 2015.
TARUN DEY
Judicial Magistrate First Class
Karimganj
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Appendix:
Prosecution witnesses:
1. P.W. 1 Abdul Raquib Tapadar
2. P.W. 2 Khalilur Rahman
3. P.W. 3 Hussain Ahmed
4. P.W. 4 Swapna Begum
5. P.W. 5 Debasish Chakraborty
6. P.W. 6 Bijon Kumar Paul
7. P.W. 7. Biswa Baran Barua
8. P.W. 8. Basir Uddin Barbhuiya
Prosecution Exhibits:
Ext. 1 The ejahar
Ext. 1(1) the signature of informant in ejahar
Ext.2 Sketch map
Ext. 2 (1) Signature of I.O
Ext. 3 Charge sheet
Ext. 3(1) Signature of I/O.
Defence witness:
1. D.W. 1 Habiba Begum
2. D.W. 2 Usama Masum
Defence Exhibits:
Nil
TARUN DEY
Judicial Magistrate First Class
Karimganj
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